Knuth v. Vogels

• Decision Date: 01 December 1953
• Citation: 61 N.W.2d 301,265 Wis. 341
• Parties: KNUTH, v. VOGELS et al.
• Court: Wisconsin Supreme Court

Page 301

61 N.W.2d 301

265 Wis. 341

KNUTH, v. VOGELS et al.

Supreme Court of Wisconsin.

Dec. 1, 1953.

Action to recover possession of a narrow strip of city property; and for mandatory injunction to compel removal from said strip of that portion of a garage and concrete driveway which encroaches thereon; and also to recover damages for the use of said parcel.

The plaintiff Anna M. Knuth owns a piece of real estate on the northwest corner of Jackson and Mason streets in the city of Green Bay, upon which stands her residence. The premises are 80.18 feet in length east and west, and 70.03 feet wide north and south, the 70.03 feet width fronting on South Jackson street. The defendants Theodore P. Vogels and Mary L. Vogels, his wife, own the adjoining premises immediately to the north of plaintiff's premises having the same east and west length, and having a frontage upon South Jackson street of 50.03 feet and reside in a home upon said premises. The defendants Joseph Pauls and Celia Pauls are mortgagees holding a mortgage against the Vogels' premises.

A survey disclosed that the garage of the Vogels located at the southwest corner of their premises encroaches upon the plaintiff's premises 1.68 feet at the southwest corner thereof, and 1.93 feet at the southeast corner thereof, and in addition the south eaves of the roof project still farther over plaintiff's property. Such survey also discloses that the concrete driveway leading from such garage easterly to South Jackson street encroaches 1.13 feet at the southeast corner of the garage and 2.8 feet at the east lot line.

The testimony is in dispute as to whether the Vogels and their predecessors acquired an easement for driveway purposes over that portion of plaintiff's premises on which the concrete driveway encroaches by 20 years adverse user. It is undisputed that the garage was placed in its present location by Ralph Drum, a predecessor in title of the Vogels on or about August 30, 1941. The garage prior to such date faced south and was located to the north of its present location, which former location required the making of a right angle turn from the driveway in order to enter the same. Drum moved the garage to its present location so that it faced east and no turn was necessary in proceeding up the driveway from South Jackson street into the garage. At the time the garage was so moved to its present location the plaintiff and her brother, Otto Foss, were residing in the home on the premises now owned by plaintiff and continued to reside together up to the time of the trial. The record title to the premises was in the name of Otto Foss, but on February 4, 1941, Foss had deeded the premises to plaintiff but she did not record her deed until June 7, 1950.

At the time of moving the garage Drum contacted Otto Foss and told him of his plans and Foss stated that he had no objection to the garage being placed where Drum had proposed, provided the eaves did not drain directly on plaintiff's premises. Drum then moved the garage and placed it in its present location believing it to be entirely on his own premises. In relocating the garage it was necessary to lay a new concrete slab for the floor. No protest was ever made by plaintiff or in her behalf that such garage encroached upon her property until shortly before the commencement of the within action in October, 1950. Prior to May 27, 1950, the driveway along the south side of defendants' premises was a cinder driveway, but on that date the defendants Vogels started to remove the cinder driveway and in place of it put in the present concrete driveway.

The trial court determined that the defendants Vogels had acquired an easement by prescription through adverse user by themselves and their predecessors in title for more than 20 years to use that portion of plaintiff's premises for driveway purposes upon which the south portion of the concrete driveway now encroaches. As to the encroachment of the garage, the trial court determined that the plaintiff was barred from asserting her rights because she was guilty of 'gross laches and negligence in asserting her rights at the proper time when she knew or had good reason to believe that the garage was encroaching on her premises'. Judgment was entered on August 12, 1952, dismissing the plaintiff's complaint, and from such judgment the plaintiff has appealed.

Kaftan, Kaftan & Kaftan, Green Bay, for appellant.

Berk & Jarstad, Green Bay, for respondents.

CURRIE, Justice.

The issues on this appeal are:

(1) Whether the evidence sustains the trial court's finding that the defendants Vogels and their predecessors in title acquired an easement by prescription for driveway purposes across the narrow strip of plaintiff's land on which the south portion of the concrete driveway is located through more than 20 years adverse user.

(2) Whether the replacing of the cinder driveway with the concrete driveway imposed an additional burden upon plaintiff's land.

(3) Whether the plaintiff is barred by estoppel from recovering that portion of her premises upon which the garage of the defendants Vogels encroaches; and, if so, whether she is entitled to damages.

There is no dispute but what the cinder driveway was used by the defendants Vogels and their predecessors in title for more than 20 years. However, the testimony is in sharp dispute as to whether the south edge of the concrete driveway, which replaced the cinder driveway in 1950, extends farther to the south than the south edge of the cinder driveway. Robert Vander Wegen, the contractor who laid the concrete driveway, testified that the south edge of the new concrete driveway is somewhat to the north of the cinders forming the south boundary line of the old cinder driveway. Other witnesses testified both ways as to whether the concrete driveway does, or does not, extend farther to the south than the former cinder driveway. The new concrete driveway is wider than the old cinder driveway because it extends farther to the north to take the place of a sidewalk which formerly existed parallel to the north edge of the cinder driveway.

The photographs (exhibits 4 and 5) relied upon by plaintiff are not at all conclusive on the issue as to the south boundary line of the old cinder driveway. They only show the west few feet of the cinder driveway leading into Vogels' garage and that not very distinctly. There is ample credible evidence to sustain the...